DMCA Subpoena Power Does Not Extend to ISP Acting Solely as Conduit

The Digital Millennium Copyright Act (DMCA) does not authorize issuance of a subpoena to an internet service provider (ISP) acting merely as a conduit to allegedly infringing communications that are not stored on the ISP’s servers. Recording Industry Association of America v. Verizon Internet Services, Inc., Case Nos. 03-7015 and 03-7053, 2003 U.S. App. LEXIS 25735 (D.C. Cir. Dec. 19, 2003).

Section 512(h) of the DMCA permits a copyright owner to obtain subpoenas compelling ISPs to disclose the names of subscribers whom copyright owners allege are engaging in copyright infringement. To obtain a subpoena, the copyright owner must file a "notification of claimed infringement" that identifies the copyrighted works that were claimed to have been infringed and the infringing material or activity and providing information reasonably sufficient for the ISP to locate the material "to be removed or access to which is to be disabled" as set forth in Section 512(c)(3)(A)(iii).